Kashmir: From legal rigmarole to a solution | Pakistan Today

Kashmir: From legal rigmarole to a solution

  • There are solutions aplenty, if only India was ready

Kashmir is a disputed state. By annexing it, India negated the cardinal principle in inter-state relations, that is, pacta sunt servanda (treaties are to be observed) and are binding upon signatories.

UN resolutions antiquated?: If disinterested, India should wriggle out of bilateral and multilateral agreements by pleading that the UN resolutions stand antiquated under another principle clasula rebus sic stantibus: In the case of a `fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for termination or suspending operation of a treaty. The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. Paragraph 3, codifying the principle of rebus sic stantibus, states `If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty’.

India should tell the International Court of Justice that the Simla Agreement of 1972 has superseded the UN Resolution of 1948 (envisioning exercise of the right of self-determination) on the basis of the principle lex posterior derogat priori, ‘the later treaty abrogates the earlier’. The principle is enshrined in Article 59 of the Vienna Convention.

Simla Accord: But, even the Simla Accord accepts the UN resolutions. The UN observers are still on duty on the Line Of Actual Control. They submit an annual report to the UN’s secretary general. It identifies Kashmir as an international problem. The United Nations’ Military Observers’ Group on India Pakistan came into existence in 1949 to maintain sanctity of the ceasefire line after the war of 1947-48. The first group of United Nations military observers arrived on 24 January 1949. The UN spends $40 million annually on their upkeep.

If no solution is hammered out, then, still, there are two solutions– a nuclear holocaust or, perhaps, divine intervention

India is wary of their presence. It asked them to vacate their office in New Delhi where they had been since 1949, in 2014. It even harassed them. Indian troops fired across LoC in their presence and injured two locals in March 2018).

India could not get the dormant `India-Pakistan Question’ deleted from the UN agenda (as informally decided by the Security Council on 30 July 1996).

Paragraph 1(i) of the Simla Agreement provides, `the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’. The right of self-determination is a recognised right under the UNO charter and conventions. It is now not only a political but also a legal right.

Dixit’s mid-way advice: Former Indian foreign secretary J.N. Dixit was of view that it is no use splitting legal hairs. `Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations… so to quibble about points about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work’ (V Schofield, Kashmir in the Crossfire).

Tentative solutions: Aside from plebiscite, there are a plethora of alternative solutions: ( a) Freezing the Territorial Status Quo. This solution offers the Kashmiris south of the LoC both Kashmiri ID cards and Indian passports. Likewise, it offers those on the north of the LoC, Kashmiri ID cards and Pakistani passports (b) Andorra Model: Andorra was a unique co-principality (without any arbitrator), ruled by the French chief of state and the Spanish bishop of Urgel for 715 years. Through a constitution, enacted in 1993, the government was transformed into a parliamentary democracy with both French and Spanish heads of states jointly wielding executive powers (as well as defence) as co-principis. Indian media termed this solution a ‘Pandora’s box’. (c) Sweden-Finland Aland-Island Model: When the League of Nations appointed as an arbitrator in 1921, the island was given the status of an autonomous territory. Finland retains nominal sovereignty over the island with obligation to ensure linguistic rights (Swedish language) as well as culture and heritage of Aland residents. The island enjoys a neutral and demilitarised status with its own flag, postage stamps and police force. On 31 December 1994, Aland joined the European Union voluntarily. Aland is a self-governing entity, created without use of force, catering for conflicting interests of rival communities. (d) Italy-Austria South Tyrol Model: South Tyrol was part of Austria. It was inhabited by three linguistic groups (70 percent Germans, 26 percent Italians, and 4 percent Ladin). The revised package still recognizes Italian sovereignty but allows greater autonomy of legislation and administration, recognition of cultural diversity, minority vote on issues of fundamental importance, and proportional ethnic representation. (e) National Conference Autonomy Formula (2001) envisages return to the 1953 position, abrogation of all central laws imposed on the state, and an informal co-federal relationship between the parts of Kashmir. (f) Chenab Formula stipulates the River Chenab will form the separation line between free (Azad) and occupied parts of Kashmir. Some writers have discussed an Indus-basin-based formula, akin to it. (g) The Kashmir-Study-Group Formula envisages division of the state into two self-governing entities, enjoying free access to one another. The entities would have their own democratic constitutions, citizenship, flag, and legislature (sans defence matters jurisdiction). Defence would be the joint responsibility of India and Pakistan. (h) Northern Ireland model. In a 2003 video talk to an audience in New Delhi bill Clinton favoured it.(i) Misc. Sami parliamentary model, Italy-Yugoslavia Trieste model, Basque leader Jose Ibarretxe ideas, Caledonia island (discovered in 1774) sovereignty-sharing Noumea agreement (1999).

Interim solution: Pending a final settlement, softening the borders à la Mehta appears to be need of the hour to mitigate suffering of the Kashmiri.

Divine solution: If no solution is hammered out, then, still, there are two solutions– a nuclear holocaust or, perhaps, divine intervention.

The writer is a freelance journalist, has served in the Pakistan government for 39 years and holds degrees in economics, business administration, and law. He can be reached at [email protected]